Judge: Cherol J. Nellon, Case: 20STCV15296, Date: 2023-05-19 Tentative Ruling
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Case Number: 20STCV15296 Hearing Date: May 19, 2023 Dept: 28
Plaintiffs Gabriela Romero Gonzalez and Lourdes Farias’s Motion to Vacate Entry of Dismissal
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On April 21, 2020, Plaintiffs Gabriela Romero Gonzalez (“Gonzalez”) and Lourdes Farias (“Farias”) filed this action against Defendant Debbie’s Bridal (“DB”) for general negligence and premises liability. Plaintiff later amended the complaint to include Defendant Bemas Investment, LLC (“Bemas”).
On July 21, 2020, DB filed an answer. The Court later struck DB’s answer.
On September 18, 2020, Bemas filed an answer. On November 9, 2021, the Court dismissed Bemas, without prejudice, pursuant to Plaintiff’s request.
On January 5, 2023, the Court dismissed Plaintiffs, without prejudice.
On February 6, 2023, Plaintiffs filed a Motion to Vacate Dismissal to be heard on April 25, 2023. The Court continued the hearing on the motion to May 19, 2023.
PARTY’S REQUESTS
Plaintiffs request the Court vacate dismissal as it was entered due to Plaintiffs’ counsel’s mistake.
LEGAL STANDARD
“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision grants relief based upon a party or legal representative’s mistake, inadvertence, surprise, or neglect. The discretionary provision states in pertinent part:
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
The mandatory provision states in pertinent part:
“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”
“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.)
CCP §473(b) does not apply setting aside mandatory dismissal entered pursuant to §583.250. (Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078.)
DISCUSSION
Plaintiffs’ application was filed within 6 months of dismissal of Plaintiffs.
Plaintiffs’ counsel submitted a declaration stating that counsel inadvertently failed to calendar the hearing, resulting in their non-appearance and subsequent dismissal. As the dismissal was due to attorney’s mistake, Plaintiffs have complied with all requirements for relief. The Court grants the motion.
CONCLUSION
Plaintiffs Gabriela Romero Gonzalez and Lourdes Farias’s Motion to Vacate Entry of Dismissal is GRANTED. Dismissal of Plaintiffs is vacated.
The Court sets an Order to Show Cause Re: Stauts of Entry of Default for June 22, 2023, at 8:30 a.m., in Department 28 of the Spring Street Courthouse.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.